Citation Nr: 1754050 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 10-24 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for residuals, right foot fracture with posttraumatic arthritis, metatarsalgia, and hammer toes (second toe and third toe). 2. Entitlement to service connection for a left knee condition (claimed as left anterior knee pain). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel INTRODUCTION The Veteran served on active duty from January 2007 to June 2007 and from July 2008 to April 2009. He also had a period of Active Duty for Training (ACDUTRA) from November 2005 to July 2006 with the United States Air Force Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2009 and November 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The issue of whether new and material evidence has been received sufficient to reopen a claim for service connection for bilateral hearing loss has been raised by the record in a July 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue of entitlement to service connection for a left knee condition (claimed as left knee anterior pain) is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Prior to July 10, 2013, the Veteran's right foot injury was manifested by periods of significant pain and stiffness while standing and when walking prolonged distances; based on the evidence, the injury could reasonably be classified as moderately severe. 2. Resolving doubt in the Veteran's favor, as of July 10, 2013, the Veteran's right foot injury was manifested by swelling upon prolonged standing, pain accentuated on use after walking causing an altered gait and weakness and incoordination that could significantly limit functional ability during flare-ups, or when the joint was used repeatedly over a period of time; based on the evidence, the injury could reasonably be classified as severe; actual loss of use of the foot or its equivalent has not been shown. CONCLUSIONS OF LAW 1. Prior to July 10, 2013, the criteria for an initial disability rating in excess of 20 percent for residuals, right foot fracture with posttraumatic arthritis, metatarsalgia, and hammer toes were not met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5284 (2017). 2. Resolving doubt in the Veteran's favor, on and after July 10, 2013, the criteria for a disability rating of 30 percent (but no higher) for residuals, right foot fracture with posttraumatic arthritis, metatarsalgia, and hammer toes were met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5284 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal exertion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2015); see also 38 C.F.R. §§ 4.45, 4.59 (2015). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Diagnostic Codes 5276-5284 can be used to evaluate disabilities of the feet. These pertain to flatfoot (5276), weak foot (5277), claw foot (5278), metatarsalgia (5279), hallux valgus (5280 & 5281), hammer toe (5282), malunion of or nonunion of the tarsal or metatarsal bones (5283) and other foot injuries (5284). 38 C.F.R. § 4.71a. As part of the consideration as to which code or codes are the most appropriate to utilize, the Board must be mindful that assigning multiple ratings based on the same symptoms or manifestations would constitute prohibited pyramiding. 38 C.F.R. § 4.14. The United States Court of Appeals for Veterans Claims (Court) explained in Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) that when determining whether separate disability ratings are warranted, "[t]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions." The rationale for 38 U.S.C.A. § 4.14 prohibition of pyramiding is that "the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment" incurred. The Veteran is service connected for residuals, right foot fracture with posttraumatic arthritis, metatarsalgia, and hammer toes (second toe and third toe). Notably, under the Diagnostic Codes pertaining to metatarsalgia (5279) and hammer toe (5282), the maximum assignable rating is 10 percent. The Veteran is in receipt of a 20 percent rating under Diagnostic Code (DC) 5284. Use of that DC is most favorable to the Veteran as ratings in excess of 10 percent are available. Separate ratings under DC 5279 or DC 5282 would constitute prohibited pyramiding, as explained above. Under DC 5284, a 20 percent rating is afforded for "moderately severe" symptoms and a 30 percent rating is afforded when symptoms are "severe." With actual loss of use of the foot, a 40 percent rating will be assigned. See 38 C.F.R. § 4.71a, DC 5284. Loss of use of the foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot, whether the act of balance and propulsion could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. The words "slight", "moderate", "severe", "marked" and "pronounced" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just". 38 C.F.R. § 4.6. Turning to the evidence, in July 2009, the Veteran underwent a VA examination. Right foot symptoms were noted to include pain and stiffness. Flare-ups of foot disease were not noted and the Veteran's gait was normal. Motor and sensory loss was not shown. X-ray showed evidence of old healed fractures of the first, second, third and fifth metatarsal. No acute fractures were identified and the soft tissues were normal. Decreased mobility was noted along with problems lifting and carrying due to pain. The foot injury was noted to prevent participation in sports. Effects on chores, exercise, shopping, recreation and traveling were moderate. Treatment records from the Air Force Medical Center indicated the Veteran sought follow up in December 2009 for continued pain on the top of his right foot. It was noted he experienced a throbbing and aching sensation aggravated by prolonged standing or running. The Veteran described pain as 5 on a scale of 1 to 10. His no-run or walk for fitness tests, no sit-ups, no push-ups profile was extended per his request and a Medical Evaluation Board was suggested. In February 2010, the Veteran visited the podiatry clinic. He complained of continued pain. He rated the pain as 6/10 with 10/10 being the worst pain. Difficulty was noted with ambulation, weight bearing and footwear. X-rays revealed fracture sites appearing well healed with no gross deformity; MP joints radiographically appeared within normal limits. It was noted that hammer toe deformities had developed to the right second and third toes. This development indicated ligamentous damage done to the plantar plate and suggested soft tissue damage. Minimal pitting edema was noted to the right forefoot. Pedal sensations were grossly intact and no clinical evidence of muscular atrophy or gross foot deformity was present other than described. Accommodative foot orthotics were requested for the Veteran. In March 2010, the Veteran returned to the podiatry clinic. It was noted he ambulated independently. He related the foot orthotics did improve his condition somewhat, but he continued to experience pain in the right forefoot. That day it was noted to be 5/10 with 10/10 being the worst pain. MRI results showed no evidence of internal derangement of the right forefoot. Minimal first metatarsophalangeal joint degenerative joint disease was identified. It was noted the Veteran continued to have pain with weight bearing and ambulation which was "quite significant." He had difficulty with any length of ambulation and was unable to run or do any exercise. It was noted he could not spend long hours on his foot, as that resulted in pain and swelling. The Veteran was casted for custom foot orthotics. In his June 2010 Form 9, the Veteran indicated he was limited to walking and could not run, jump or power lift. He stated his foot condition caused severe pain daily and hindered his abilities. He requested a 20 percent rating for his foot disability. In a July 2011 supplemental statement of the case, a 20 percent initial rating was granted due to periods of significant pain and swelling equivalent to moderately severe foot injury. Upon examination in July 2013, it was noted there was weakness to the right foot on plantar flexion due to right foot pain. The Veteran related he had to walk with an altered gait due to the pain associated with his foot injury and that he had difficulty with swelling in the right foot after standing for long periods of time. It was noted that pain, weakness, and incoordination could significantly limit functional ability during flare-ups, or when the joint was used repeatedly over a period of time; however, the examiner was unable to express such in terms of degree. In an August 2014 Physician Assistant's Note, the Veteran stated his foot disability was affecting both knees and his back and his foot was the root cause of the rest of his problems. He asked for a therapeutic amputation of the injured foot to correct those problems. In August 2017, the Veteran underwent another VA examination. The Veteran reported a worsening of his foot condition since the last VA examination. He reported ongoing pain, altered gait from "offloading" from his right foot and diagnosis of complex regional pain syndrome type 1 (CRPS) related to the service-connected right foot injury. The Veteran stated his pain was chronic, constant and worsened with weight bearing or when pressure was applied to any part of the foot. He reported experiencing swelling and that wearing a sock or having clothing or bed covers push against his foot is painful. He stated experiencing daily flare-ups involving pain, swelling and limited motion of the toes. The examiner noted the foot condition was moderately severe and did not chronically compromise weight bearing. Excess fatigability, pain on movement, pain on weight-bearing, pain on non-weight-bearing, swelling and interference with standing were all noted to contribute to functional loss and limitation of motion. The Veteran reported pain, weakness and fatigability of the joint that could significantly limit functional ability during flare-ups or with repetitive use over a period of time. The examiner noted there was likely additional limitation with change in the baseline range of motion due to "pain on use or during flare-ups", but noted it would be pure speculation to state what additional range of motion loss would be present due to pain on use during a flare-up since the examination was not taking place during a flare-up. It was noted the Veteran did not use an assistive device and that there was not functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. It was noted that work activities like standing or walking worsened his foot symptoms. In an August 2017 rating decision, service connection was granted for CRPS. The initial rating assigned for CRPS was not appealed. After considering the medical findings and lay contentions of record, the Board finds the evidence reveals right foot impairment that can be characterized as moderately severe throughout the appeal period prior to July 10, 2013. The disability in the Veteran's right foot caused pain which affected his ability to stand or walk for prolonged periods, as well as swelling and stiffness. Sensory changes were not noted and flare-ups capable of producing significant functional loss were note shown. This supports a finding that a 20 percent rating under DC 5284 is warranted. 38 C.F.R. § 4.71a. However, the Board does not associate such symptoms as productive of severe impairment. Considering the evidence in the light most favorable to the Veteran, as of July 10, 2013, the record demonstrates right foot impairment that could be characterized as severe, as evidenced by pain causing an altered gait and worsened by putting pressure on any part of the foot, weakness in the foot and flare-ups that could significantly limit functional ability As such, a 30 percent rating is warranted as of that date, which is the first evidence of a worsened disability of the foot. 38 C.F.R. § 4.71a, DC 5284. This is the highest rating available under DC 5284 in the absence of actual loss of use of the foot. Although the Veteran mentioned "therapeutic" amputation of the foot in August 2014, the Board does not find that loss of use of the foot or its equivalent has been shown. Indeed, the Veteran has not contended that he experiences actual loss of use of the foot. This is true even when considering 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45. The Board has considered sections 4.40 and 4.45 in finding evidence of severe foot disability as of July 10, 2013; however, the lay and medical evidence of record does not reflect that his pain and other symptoms have been so disabling as to result in the equivalent of loss of use of the foot so as to justify the assignment of a 40 percent disability rating under DC 5284. Indeed, the Veteran continues to be able to walk and gross deformity of the foot has not been shown at any time during the appeal period. The Board acknowledges the Veteran's representative's request that the case be remanded for a new VA examination. See November 2017 Written Brief Presentation. Here, there is no evidence that the Veteran's right foot condition has significantly worsened since the August 2017 VA examination or that remand would provide further evidence not already available to the Board. Indeed, doubt has been resolved in the Veteran's favor under the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 in granting the Veteran a higher rating for his foot disability based, in part, on the severity of his reported flare-ups. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching the above conclusions, the Board has resolved the benefit of the doubt in the Veteran's favor. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. ORDER A rating in excess of 20 percent for residuals, right foot fracture with posttraumatic arthritis, metatarsalgia, and hammer toes prior to July 10, 2013 is denied. A 30 percent rating (but no higher) for residuals, right foot fracture with posttraumatic arthritis, metatarsalgia, and hammer toes is granted effective July 10, 2013, subject to controlling regulations governing the payment of monetary awards. REMAND Service treatment records (STRs) dated in May 2006 during a period of ACDUTRA indicate a diagnosis of patellofemoral syndrome left knee. The Veteran presented with 2 day history of sharp pain under the left patella, made worse with squatting, going up stairs, running and marching. In May 2007, following his ACDUTRA period, the Veteran reported continuing left knee pain and a diagnosis of "patellofemoral syndrome left" was again noted. In May 2014, prior to his claim for service connection, the Veteran underwent a MRI of the left knee. Impressions indicated that at the patellar apex, there was a 4 mm diameter region of articular cartilage fibrillation and edema. In addition, an intermediate 2 x 5 x 19 mm multi septated cyst was seen adjacent to the anterior margin of the medial meniscus with no discrete tear identified. An occult tear could not be excluded. At an October 2014 VA examination, the Veteran stated he had a left knee problem as a result of walking with an abnormal gait due to his right foot disability. The examiner found no objective evidence to support a diagnosis of a knee condition. Range of motion was normal without functional loss. In his November 2014 notice of disagreement, the Veteran indicated that due to continuing pain in his right foot, he has to stand and walk unevenly in order to tolerate and ease the pain. He believes that most of his weight is putting stress on the left knee joint, causing him to experience pain, popping, grinding and swelling. He indicated that pain in the left knee was making it difficult to bend, kneel, walk, stand and go up or down stairs. He indicated this continued to worsen. He indicated that when he went to see a physician through the Veterans Evaluation Services, he was told that his patella was in terrible condition and he would need a knee replacement before he turned 50. In his January 2016 Form 9, the Veteran again insisted that as a result of increasing right foot pain, he had to overcompensate by shifting more weight onto his left side. By overcompensating, he indicating having pain, swelling, popping and grinding in the knee that was gradually worsening. The Board has a duty to consider all theories of entitlement to the benefit sought. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining service connection, all theories of entitlement, direct and secondary, must be considered). An examination is required when (1) there is evidence of a current disability, (2) evidence establishing an 'in-service event, injury or disease,' or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, STRs from the Veteran's period of ACDUTRA suggest the presence of a knee disability affecting the left patella. In May 2014, MRI of the left knee also suggested disability affecting the patella. It has been three years since the last VA examination of the Veteran's left knee and the Board finds there is indication of a current left knee disability that may either be related to the Veteran's period of ACDUTRA or that has been caused by or aggravated by his service-connected right foot condition. As the evidence pertaining to this issue is insufficient to make a decision on the claim, the Board will remand for a new VA examination to determine if the Veteran has a current disability in his left knee that is related to active service or, in the alternative, secondary to his service-connected right foot disability. Additionally, as this case must be remanded for the foregoing reasons, recent treatment records, including VA records, should also be obtained. 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Update the electronic claims file with VA treatment records from May 2017. 2. Request that the Veteran identify any sources of private treatment for his left knee that do not already appear in the claims file and to authorize release of those records to VA. All requests and responses, positive and negative, must be documented in the claims file. If the requested records are unavailable, the Veteran should be so notified so he can provide those records himself, if possible. 3. Schedule the Veteran for a VA examination to address the nature and etiology of any left knee disability. The claims file must be provided to the examiner for review. Any clinically indicated testing and/or consultations must be performed. Following a review of the record, and physical examination of the Veteran, the examiner is requested to address the following: a. Provide a current diagnosis for any left knee disabilities present. b. For each diagnosis provided, opine as to whether any currently diagnosed left knee condition was at least as likely as not incurred in or aggravated during a period of ACDUTRA in the Reserves or is otherwise related thereto, given evidence of treatment for patellofemoral syndrome left knee in May 2006 and evidence of edema in the patella on MRI in May 2014. c. For each diagnosis provided, opine as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is either proximately due to (caused by) or aggravated (chronically worsened beyond normal progression) by the Veteran's service-connected right foot disability. In offering this opinion, the examiner is instructed that the phrase "caused by or result of" is insufficient to address the question of aggravation. If aggravation is found, the examiner is asked to identify the baseline level of severity prior to aggravation or the severity at the first point it is ascertainable after the aggravation began. The examiner is asked to provide a rationale for any opinions provided. If the examiner is unable to provide an opinion without resort to speculation he or she should explain why. 4. Thereafter, the AOJ should readjudicate the claims in light of all the evidence of record. If the benefit sought is denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs